India: India's Law On Child Labour Prohibition Revamped

Employing children
(below 14 years) has been prohibited in all occupations and
processes, with certain limited exceptions.

Children are now
allowed to help family or family enterprises in non-hazardous
occupations after school hours or during vacations.

Children are also
allowed to work in the audio-visual entertainment industry, subject
to compliance with prescribed conditions.

Employing adolescents
(between 14 and 18 years) has been prohibited in hazardous
occupations and processes.

Employing children or
adolescents in contravention of the law has been made a cognizable
offence.

Punishment for
employers has been enhanced. Punishment for parents/ guardians have
been relaxed.

India's law on child labour has been amended to ensure that
(i) education of children between the age group of 6 - 14 years is
not compromised and (ii) the law is brought in line with the Right
to Free and Compulsory Education Act, 2009 ("Right to
Education Act"). As a result of the enactment of the
Child Labour (Prohibition and Regulation) Amendment Act, 2016
("2016 Amendment Act")1, the
Child Labour (Prohibition and Regulation) Act, 1986 is now
re-titled as the 'Child and Adolescent Labour (Prohibition and
Regulation) Act, 1986' ("Child Labour
Act"), in order to reflect its expanded scope and
coverage.

India is a signatory to the 'United Nations Convention on
the Rights of the Child' which aims at protecting the interests
and rights of children.2 Although, the International
Labor Organization has enacted Conventions such as the Minimum Age
Convention, 1973 and Worst forms of Child Labour Convention, 1999
with the objective of eliminating child labour, India has not yet
ratified the aforementioned conventions3.

Important Features

The important revisions to the Child Labour Act as a result of
the 2016 Amendment Act are as follows:

Definition of
'child': The 2016 Amended Act has brought the law in
sync with the Right to Education Act by amending the definition of
'child' to mean a person who has not completed 14
years or such age as specified under the Right to Education Act,
whichever is higher. This definition however continues to
remain different from the definition of 'child' as per the
Factories Act, 1948.

Definition of
'adolescent' introduced: 'Adolescent' has been
defined to mean a person who has completed his 14th year
but not completed his 18th year. This definition is
however slightly different from the definition of
'adolescent' as per the Factories Act, 1948.

Prohibition of
child labour: A complete ban has been imposed on employing
children, except in the following two cases:

Children are allowed
to help in his/her family or family enterprise(s) provided that (i)
such enterprise is not involved in hazardous processes and (ii) the
work is carried out after school hours or during vacations.

Children are allowed
to work in the audio-visual entertainment industry including
advertisement, films, television serials or any such other
entertainment or sports activities except circus subject to (i)
compliance with prescribed conditions and adoption of safety
measures, and (ii) the work does not affect the school education of
the child.

Prohibition on
employment of adolescents: New provision prohibiting
employment of adolescents in hazardous occupations and processes
introduced.

Child labour made
a cognizable offence: Any offence committed by an
employer which is punishable under the Child Labour Act has been
made a cognizable offence. Accordingly, the authorities can file a
first information report and commence investigations into the
offence without a court order and can arrest without a
warrant.

Punishments for
contravention enhanced: While the punishment
for employers has been significantly enhanced, the punishment for
parents / guardians has been relaxed. Please see the table
below for a comparative on the punishment before and after the 2016
Amended Act.

OFFENCE

CHILD LABOUR
ACT

AMENDED CHILD
LABOUR ACT

PENALTY

PENALTY

Employment of a child or
permitting a child to work in any occupation or process in
contravention to the statute

Second or subsequent
offence of employing any child or adolescent in contravention of
the statute

Imprisonment: 6 months -
2 years

Imprisonment: 1 - 3
years

Punishment for
parents/guardians relaxed: There shall not be any
punishment in case of a first offence by parents/guardians. In case
of a second and subsequent offence, the penalty prescribed is a
maximum fine of Rs. 10,000 (approx. USD 150).

Powers of
District Magistrate: Powers have been vested with the District
Magistrate to ensure that the provisions of the amended law are
properly enforced.

Constitution of
Child and Adolescent Labour Rehabilitation Fund:
Provision has been made for constitution of a special fund by the
appropriate government in every district or two or more districts,
for rescue and rehabilitation of children and adolescents.

Compounding of
offences: Provision has been made for compounding of offences
on application made by the accused to the District Magistrate.

Inspection and
Monitoring: Provision has been made for periodic
inspection and monitoring by the appropriate government of places
where employment of children is prohibited and hazardous
occupations or processes are carried out.

Analysis

India has taken a significant step towards prohibition and
eradication of the social evil of child labour which has consumed
the society to a large extent. The 2016 Amended Act has now been
brought in sync with the Right to Education Act. Although the
amended law instils some amount of hope and confidence in those
vouching for the betterment of children, the impact and reach of
the law is yet to be witnessed. Given the magnitude of the problem
and the complexities involved, proper enforcement of the law will
have to be ensured by the authorities. Mere enactment of the law
would not suffice unless it is accompanied by a range of other
measures and conducive conditions to eradicate child labour. At the
outset, the 2016 Amended Act poses inter alia the
following challenges:

In a move to strike a
balance between the need for education of children and the reality
of socio-economic conditions in India, the government has carved
out certain exceptions to the ban on engaging/employing children by
allowing children to help family or family run enterprises. Such an
exception could lead to exploitation of children in industries
where the activities may be outsourced to home-based units. Hence
the exception paves way for employers to take advantage of
"family enterprises" to employ child workers. In other
words, prohibited activities could occur under the guise of
'permitted exceptions'. Thus the exceptions permitting
certain occupations outside school hours may have potential
loopholes which could increase the vulnerability of child
workers.

Although the amended
law states that children may be permitted to work in family or
family run enterprises only 'outside school hours', there
is no authority to check nor has a mechanism been devised to ensure
that these permitted activities are not hindering or affecting the
education of children.

The 2016 Amended Act
has significantly reduced the list of hazardous occupations for
children from 83 to include only (i) mining, (ii) explosives and
(iii) other occupations mentioned in the Factories Act, 1948.
Hence, various works including work in chemical mixing units,
cotton farms, battery recycling units, brick kilns, have been
dropped from the list of hazardous activities and there does not
seem to be valid justification for removal of any of these
activities.

Instead of imposing
stricter penalties and enforcing punitive actions, the amendment
has relaxed the provision with respect to punishment for parents
and guardians who contravene the law, which earlier, was the same
as that for employers.

The amendment does
not provide for any steps/measures to sensitize employers, parents
and society to ensure accountability in case there are
violations.

Hence, to summarize, the outcome of the amended law would not
just depend on the existing legislative framework, but also on
various other factors such as the reforms and measures that the
government subsequently adopts to address the issue and the speed
at which such steps are implemented/enforced. A holistic approach
will have to be adopted to address all the direct and indirect
factors that contribute to the social evil. Multiple ministries,
agencies and private sector stakeholders will have to join hands
together to combat this social evil.

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